Lon L. Fuller,Gustav Radbruch,and the “positivist” theses

For helpful suggestions and criticism I am grateful to Delf Buchwald (Göttingen), Malte Dießelhorst (Göttingen), Ralf Dreier (Göttingen), Bonnie Litschewski Paulson (Göttingen and St. Louis), Martin Schulte (Münster), Alexander Somek (Vienna), and Kenneth I. Winston (Boston). In correspondence, Walter Ott (Zurich) and Carola Vulpius (Dresden) responded in a most helpful way to my queries.     

Contents of Volume 19 (2000)

Volume Contents

Contents of Volume 19 (2000)     

An Introduction to the Three Volumes of Karl Marx's Capital

Daniel P. Liston, CAPITALIST SCHOOLS: EXPLANATION AND ETHICS IN RADICAL STUDIES OF SCHOOLING (New York: Routledge, 1988), and Henry A. Giroux, SCHOOLING AND THE STRUGGLE FOR PUBLIC LIFE: CRITICAL PEDAGOGY IN THE MODERN AGE (Minneapolis: University of Minnesota Press, 1988).

Ernest L. Boyer, COLLEGE: THE UNDERGRADUATE EXPERIENCE IN AMERICA (New York: Harper &; Row, 1987; first paperback edition 1988).

Elzbieta Ettinger, ROSA LUXEMBURG: A LIFE (Boston: Beacon, 1986).

Stanley Aronowitz, SCIENCE AS POWER: DISCOURSE AND IDEOLOGY IN MODERN SCIENCE (Minneapolis: University of Minnesota Press, 1988).

Shoshana Zuboff, IN THE AGE OF THE SMART MACHINE: THE FUTURE OF WORK AND POWER (New York: Basic Books, Inc., 1988)

Carol Gould, RE‐THINKING DEMOCRACY, FREEDOM AND SOCIAL COOPERATION IN POLITICS, ECONOMY AND SOCIETY (New York: Cambridge University Press, 1988).

Seyla Benhabib, CRITIQUE, NORM, AND UTOPIA: A STUDY OF THE FOUNDATIONS OF CRITICAL THEORY (New York: Columbia University Press, 1986)

Burton Zwiebach, THE COMMON LIFE: AMBIGUITY, AGREEMENT, AND THE STRUCTURE OF MORALS (Philadelphia: Temple University Press, 1988)     

The Purity Thesis

Hans Kelsen’s purity thesis is the basic methodological principle of the Pure Theory of Law. Indeed, it is no exaggeration to say that virtually everything that is peculiar to Kelsen’s legal theory stems from the purity thesis. This includes Kelsen’s normativism or non‐naturalism and his polemic against various dualisms in legal science. I set out Kelsen’s position on these issues after looking at the nomenclature of purity in his writings as well as the philosophical and contextual sources of purity as he understands them.     

Constitutional Review in the United States and Austria: Notes on the Beginnings

Abstract.   Despite far-reaching historical and political differences, and despite legal systems that reflect altogether different traditions, the United States and Austria manifest striking similarities where some aspects of their respective development of constitutional review are concerned. For example, on the constitutional review of federalist issues (competing claims of federal and state law), the review power was there from the beginning in both countries. And both countries developed a power of constitutional review reaching to the enactments of the federal legislature. In a brief sketch of aspects of the early development of constitutional review in both countries, the author looks, in particular, to the kinds of arguments made on behalf of constitutional review in the American and Austrian legal systems.     

The Weak Reading of Authority in Hans Kelsen's Pure Theory of Law

Authority qua empowerment is theweak reading of authority in Hans Kelsen's writings.On the one hand, this reading appears to beunresponsive to the problem of authority as we know itfrom the tradition. On the other hand, it squares withlegal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends anormativity thesis along with the separation thesis,and it is at any rate arguable that the normativitythesis mandates a stronger reading of authority thanthat modelled on empowerment. I offer, in the paper,a prima facie case on behalf of a stronger reading ofauthority in Kelsen. I go on to argue, however, thatthe textual evidence weighs heavily in favour of theweak reading. Both nomostatics and nomodynamics arepervasive points of view in the Pure Theory of Law,and both reflect species of empowerment as theendpoint of Kelsen's reconstructions.

     

Hans Kelsen's Doctrine of Imputation

First, the author examines the traditional doctrine of imputation. A look at the traditional doctrine is useful for establishing a point of departure in comparing Kelsen's doctrines of central and peripheral imputation. Second, the author turns to central imputation. Here Kelsen's doctrine follows the traditional doctrine in attributing liability or responsibility to the subject. Kelsen's legal subject, however, has been depersonalized and thus requires radical qualification. Third, the author takes up peripheral imputation, which is the main focus of the paper. It is argued that with respect to the basic form of the law, exhibited by the linking of legal condition with legal consequence, peripheral imputation counts as an austere doctrine, shorn as it is of all references to legal personality or the legal subject. If Kelsen's reconstructed legal norms are empowerments, then the austere doctrine of peripheral imputation captures the rudiments of their form, exactly what would be expected if peripheral imputation does indeed serve as the category of legal cognition. Finally, the author develops the puzzle surrounding the legal "ought" in this context. Although Kelsen talks at one point as though the legal "ought" were the peculiarly legal category, the author submits that this is not the best reading of Kelsen's texts.     

The Rise of Resilience in Education in Emergencies

ABSTRACT

This article explores how resilience as a concept is being increasingly mobilised within the Education in Emergencies (EiE) community. Using content and a close textual analysis, it identifies the concept's growth in prominence within key EiE documents arguing it has been employed to serve a range of different purposes. It contends, however, that dominant conceptualisations of resilience within the EiE community are reflective of a number of shifts around the problem, subjects and purposes of education provision in such conflict-affected contexts. This serves to limit the transformative potential of resilience, particularly in regards to contributing to positive peace.